Legitimacy of “caretaker” government

THE write-up “Constitutional Conventions” by S. Sahay (May 3) is elaborate, lucid and forthright reflecting on the powers of a government which has been installed by the President during the interim period of dissolution of one Parliament and its replacement by a new, elected Parliament. What is wrong if a word substituting a long phraseology has been coined by the journalists to give respectability to a government that is functioning, not according to the provisions of the Indian Constitution, but by courtesy the President of India?

Actually, when a Prime Minister has lost the vote of confidence in the House, he legitimately and constitutionally ceases to be “Prime Minister” and therefore, loses the constitutional right to govern. There is no provision in the Constitution for a government that does not have its accountability to Parliament. When the resignation has been accepted by the President, does a man have any moral or legal right to remain in office?

Therefore, the government which has not been formed under the specific provisions of the Constitution, is an “unlawful” and “unconstitutional” product of mere convention which does not confer any legitimacy on the “appointed Prime Minister” and his Government. Their role is just to act at the pleasure of the President of India and howsoever humiliating it may appear, they can function not beyond the powers of a “head clerk” to the President. If they feel humiliated in so acting or feel insulted in being designated as “caretaker”, “interim”, or a government without “a constitutional authority on its back”, they can lay down their office and ask the President to run the administration in whatever way he likes.

As a matter of fact, since there is no provision at all in the Constitution of India for such ministry that has resigned but has been asked merely by courtesy to continue functioning in office, the President of India should better depend on the permanent House, the Rajya Sabha for drawing a team of Ministers to help him in the discharge of his functions, or ask the “defeated” Ministry to leave office and hand over the administration direct to the senior bureaucrats. All controversies emerging out of the legitimacy or constitutional validity of interim government shall come to an end if a government is not permitted to continue in office once it has tendered its resignation. If, however, the request of the President has been accepted by the outgoing government, it should be clearly told that it is functioning as extra-constitutional authority and therefore can discharge that duties only which the President of India asks them to, not more than that in any circumstances.

HARI KRISHAN GUPTA
Kurukshetra

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Wrong decision

I wish to share the displeasure of the general public against the decision of the lawyer community in Punjab, Haryana and Chandigarh for abstaining from work in courts on Saturdays and place my contention before my brothers.

After Independence the Indian judiciary took the task of imparting justice to its citizens and a six-day working for the subordinate courts and a five-day week for High Courts and the Supreme Court was fixed by the Central Government. Apart from this, there are many other holidays which the Supreme Court and the High Courts of the country enjoy, while the subordinate judiciary continues work. In all, every year while the Supreme Court of India enjoys 102 holidays (including summer, winter and autumn vacations) the High Courts enjoy 87, whereas the subordinate courts all over get only 36 holidays, besides second Saturdays and Sundays. This might have been done because the Supreme Court and the High Courts mainly deal with the appellate jurisdiction and matters concerning law points, whereas the subordinate courts impart instant justice to the litigant in the form of ad-interim injunctions and even attachment before judgement etc. Otherwise also, the backlog of cases in the subordinate courts is much higher than that in the High Courts or the Supreme Court of India.

The argument of the lawyers that they should also be given two days’ rest (Saturday and Sunday) after working for five days, sounds a bit funny, because the principles of judicial hierarchy in our country have been so framed that the subordinate courts must work more in order to render effective and speedy justice to the litigants. Secondly, the practice of six-day week in subordinate courts is not a new phenomenon. When you had worked six days a week for more than 50 years, what justification can be given in raising this superfluous demand at this belated stage? On the other hand, by abstaining from court work on Saturday or any other working day, a lawyer is not only rendering a deficient service to his client, but also committing professional misconduct which may trouble him with suspension of licence to practice.

It may be worthwhile to remind the striking lawyers that the Supreme Court of India has not only denounced the practice of striking court work, but also held it a contempt of the court if any lawyer or lawyers’ association forbids any member of that association from appearing in a court of law. In my considered view, the lawyers have no moral right to strike work on petty issues such as manhandling of a lawyer or for pressurising the administration for allotment of lawyers chambers etc. The matters which could be resolved by peaceful and legal means could not and should not be soiled in the way they are done.

ARUNJEEV SINGH WALIA
General Secretary
Lawyers for Social Reforms,
Chandigarh

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Enemies of forests

As if illicit felling of trees and the overall degradation of our forest ecosystem by man was not enough, the devastating forest fires have compounded the loss and destruction to a frightening level. I have read with shock and horror for the umpteenth time the news items pertaining to one forest area after another being engulfed by fires in Himachal Pradesh and elsewhere. One sees a thick pall of smoke engulfing the southern slopes of the mighty Dhauladhar in the north of Palampur like a ominous grey shroud of gloom. The scene would obviously be no different if one were to travel across the length and breadth of this hill state this summer.

What is perhaps even more depressing and agonising is the stony silence on the part of the powers that be, except for a routine, ritualistic statement or two. Be it tree-felling or fires or the reported diversion of money meant for forest conservation to providing luxuries and comforts for the officials, there is no visible sign of any firm commitment or a planned, judicious, affirmative action by the departments/ministry concerned in response to a spate of news reports appearing in the press with unfailing regularity.

One simply shudders at the appalling callousness displayed by one government after another — except for mouthing pious platitudes to the brazen and organised loot of tree, timber several other kinds of forest produce, destruction of wildlife, and that of the fragile ecology of the Himalayas as a whole. They have shown abject lack of sensitivity, foresight and even the very basic grassroot planning to check the steady and rapid depletion of forest cover leading to awful consequences that we are gradually becoming victims of.

Himachal Pradesh desperately needs some well-meaning, activist NGO to take up cudgels and stem the rot. I wish too there were special environmental courts where the defaulting politicians/bureaucrats/ forest officials and the mafia could be summarily tried en masse and left to languish in jails for jeopardising the very existence of our future generations and making the same so miserable for the present one.

SUBHASH C. SHARMA
Bundla (Kangra)

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No fault of theirs

The Staff Selection Commission has recently called applications for combined preliminary exams, 1999, for graduate level recruitments. The advertisement says: “The candidates who have yet to appear at degree examinations or whose result has been withheld or not declared on 1-8-99 are not eligible”. It is very unjust and unfortunate that many candidates of Punjab State whose degree examinations have been repeatedly postponed due to strike of teaching and non-teaching staff may be rendered ineligible. In the interest of justice for such candidates, the commission should suitably extend the above criteria for the suffering and affected candidates of Punjab. These persons should not be left to suffer for not fault of theirs.

MAHESH SAINI
Jalandhar